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Friday, 21 July 2017

Effective protection of TV formats has often proved a
challenging topic, no matter the jurisdiction considered. But what is the
situation like in Italy? A few weeks ago I had the pleasure of attending a
dedicated mock trial in Milan, organised by Elisabetta Mina and Mariangela Liuzzi (Milalegal) in collaboration with Viacom Italia. The event was held at the stunning
premises of the Triennale.

Elisabetta has now prepared an event report. Here’s
what she writes:

“How
are TV formats protected in Italy and in the rest of the world? On 21 June last,
during the Mock Trial at the Triennale di Milano organised by Milalegal and
Viacom Italia on the “Domestic and international TV FORMAT protection”, the
discussion focused on the actual protection of TV formats in Italy and abroad,
as well as on the forthcoming Italian self-regulation code for the protection
of formats. The latter is currently being drafted by a working group composed of
the main stakeholders – authors, producers, distributors – coordinated by the
Italian Ministry of Cultural Heritage
and Activities and Tourism (Mibact), and should be finalised by the end of the year.

The
most recent available data on national and international markets demonstrate a
global production of TV formats that is constantly growing. In 2013 more than
28,386 hours of programs transmitted on European TV channels were based on
formats. The global leader for exportation of formats is the United Kingdom.
Although it represents one-quarter of the European TV market, Italy is mostly
an importer, together with France, Spain and Germany.

As all
international players taking part to the morning’s roundtable underlined, protecting
TV formats in Europe and in most countries around the world can be challenging,
as most jurisdictions do not afford protection to TV formats via a self-standing legal right. It is believed that a format which includes an adequately detailed
substantial description of the programme to realise (i.e. script, screenplay,
etc.) is not a mere idea and could enjoy copyright protection. Moreover, in
certain countries courts have concluded that TV formats may be protected per se by means of copyright or unfair
competition.

Milalegal
created a ‘fictional case’ for the event, which discussed the copying of an
original format that has been already produced and broadcasted in Italy. The
goal of this exercise was to demonstrate the complexities of protecting TV
formats in Italy, as well as in all those countries where there is no normative
definition that identifies the essential and protectable elements of a format. Protection
is overall uncertain and often unpredictable, despite most recent Italian case law
is in the sense of granting protection of TV formats characterised by
originality, creativity and completeness of expression (i.e. fixed in a
material form), under the Italian
Copyright Act.

Italian
scholars and commentators have submitted that the comparison between
format-based programs has often led to an assessment based on the perceived
perception of the target audience, with the result that protection has been
extended to individual elements that are not original, but rather functional to
the genre to which the format belong. This was one of the main criticisms against
the well-known 2011 injunctions of the Court of First Instance of Rome, which –
further to an application by RAI in relation to its own Italian version of Dancing with the Stars (Ballando con
le Stelle), prohibited the
airing of RTI’s Baila.

Dancing with the Kats

In
addition, in terms of format protection, it would not suffice to invoke unfair
competition rules or provisions on the protection of distinctive signs, as well
as confidentiality obligations.

In
the course of the Mock Trial a panel chaired by Milan judge, Mario Barbuto, with
the help of an industry expert, confirmed that a TV format can be protected as
long as the requisites of originality and self-expression are reached, thus
also pointing out that in order to establish if there has been a copyright
infringement, it is necessary to determine if the work that is deemed infringing
has misappropriated key and original elements of the format or its narrative
structure, provided that the latter is original and creative.

This
is good news for competition to the extent that format authors create formats
which are not just different from previous ones, but also original and creative.

The
afternoon roundtable discussion focused on the forthcoming self-regulation
framework, which is due also to provide a definition of ‘format’, as well as
protecting paper formats, ie formats for which the actual TV programme
has not been realised yet.

In
the current scenario writers, producers and distributors face the uncertainty
of format protection. In order to strengthen their position they may want to
think of a number of different, practical measures: writing detailed formats, registering
formats if the national set of rules allows for it (in Italy this is indeed
possible), concluding confidential agreements and storing all correspondence, concluding
exclusive licence agreements; and, last but not least, returning formats not required
to senders in sealed envelopes, to avoid plagiarism claims.”

While I can see convenience of using the same criteria to be found in copyright law when it comes to evaluating TV formats, that is as far as it should go. The standard term of protection for copyright works (the lifetime of the author plus 70 years) is both disproportionate and ludicrous in the case of TV formats; to follow that route merely leads to a monopoly being created, in which there is no balancing public good at the end of the term of protection. Even if we sought to apply a similar formula to that for phonograms, that is 70 years from the date of publication, that is still a ridiculous amount of time given the relatively short shelf life of the average TV format. While the works of Victor Hugo are still worth reading 132 years after his death, the same cannot be said for the average TV game show or Italy's Got talent. Just as the patent has its own term of protection, commensurate with society's inclination to reward inventors, so we should stop just adding more and more genres of works to the largely unsuitable model of copyright and create a more siloed approach - one size does not fit all. It's bad enough that computer programs are treated the same as the works of Voctor Hugo.

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